DRIVING WHILE INTOXICATED (DWI)
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- A drunk driving arrest can turn your life upside-down. For many facing this charge, it will be the first and only contact they’ve ever had with the criminal justice system.
- To guide you out of this maze, you need an attorney experienced not only in criminal defense, but one familiar with the unique and technical aspects of this area of law.
The consequences …
- The consequences of a drunk driving conviction can be severe, ranging from significant fines and license revocation to a prison sentence and criminal record.
- If you are alleged to have hurt someone or damaged property while driving drunk, you will face additional charges, such as assault or homicide.
- If you have other drunk driving convictions, the penalties for a new conviction will be enhanced. The penalties can also change based upon the age of the defendant and the amount of alcohol in the blood at the time of the arrest.
- For instance, whereas a first drunk driving arrest can result in up to a year in jail, a second arrest can lead to four years of incarceration – a third arrest up to seven years in jail. Fines and license suspensions also increase commensurately.
- In addition to the penalties that a court can mete out, you also face the likelihood that your insurance premiums will rise substantially, the possibility that you will lose your job or other privileges, and the social stigma attached to having a drunk driving conviction and criminal record.
What is drunk driving?
- The charge of drunk is generally made out by showing that the driver had a blood alcohol content (BAC) in excess of 0.08. What is a BAC in excess of 0.08? It varies from person to person, but usually, it requires the intake of several drinks of alcohol within a relatively short period.
- If you make your living on the road with a commercial driver’s license (CDL), not only is your livelihood in jeopardy but the standard applicable to you is higher: a BAC of 0.04, rather than 0.08.
How do the police prove I’m drunk?
- If the police have reasonable suspicion to believe you are driving while intoxicated, they can order you to pull to the roadside. There, if they still suspect you have been drinking they can administer what is known as a “field sobriety test,” which is the familiar set of coordination exercises we’ve all seen on TV, such as finger-to-nose, walking in a straight line, etc.
- Then, if the officer continues to suspect you are intoxicated, he can administer a “breathalyzer” test. A breathalyzer is an electronic device that purports to measure your BAC. You will be asked to breathe into the device, and if you “blow” in excess of 0.08 BAC, you will face arrest.
- Under certain circumstances, the police may seek to take a blood sample from you to ascertain your blood alcohol content.
What are the types of alcohol and drug-related violations in New York State?
Driving While Intoxicated (DWI): .08 Blood Alcohol Content (BAC) or higher or other evidence of intoxication. For drivers of commercial motor vehicles: .04 BAC or other evidence of intoxication
- Aggravated Driving While Intoxicated (Aggravated DWI): .18 BAC or higher
- Driving While Ability Impaired by Alcohol (DWAI/Alcohol): more than .05 BAC but less than .07 BAC, or other evidence of impairment
- Driving While Ability Impaired by a Single Drug other than Alcohol (DWAI/Drug)
- Driving While Ability Impaired by a Combined Influence of Drugs or Alcohol (DWAI/Combination)
- Chemical Test Refusal: A driver who refuses to take a chemical test (normally a test of breath, blood or urine)
- Zero Tolerance Law: A driver who is less than 21 years of age and who drives with a .02 BAC to .07 BAC violates the Zero Tolerance Law
What are the penalties for alcohol or drug-related violations?
In New York State, the penalties for an alcohol or drug-related violation include the loss of driving privileges, fines, and a possible jail term.
| Violation |
Mandatory Fine |
Maximum Jail Term |
Mandatory Driver License Action |
| Aggravated Driving While Intoxicated (AGG DWI) | $1,000 – $2,500 | 1 year | Revoked for at least one year |
| Second AGG DWI in 10 years (E felony) | $1,000 – $5,000 | 4 years | Revoked for at least 18 months |
| Third AGG DWI in 10 years (D felony) | $2,000 – $10,000 | 7 years | Revoked for at least 18 months |
| Driving While Intoxicated (DWI) or Driving While Impaired by a Drug (DWAI-Drug) | $500 – $1,000 | 1 year | DWI – Revoked for at least six months DWAI-Drugs – Suspended for at least six months |
| Second DWI or DWAI-Drug violation in 10 years (E felony) | $1,000 – $5,000 | 4 years | Revoked for at least one year |
| Third DWI or DWAI-Drug violation in 10 years (D felony) | $2,000 – $10,000 | 7 years | Revoked for at least one year |
| Driving While Ability Impaired by a Combination of Alcohol/Drugs (DWAI-Combination) | $500 – $1,000 | 1 year | Revoked for at least six months |
| Second DWAI-Combination in 10 years (E felony) | $1,000 – $5,000 | 4 years | Revoked for at least one year |
| Third DWAI-Combination in 10 years (D felony) | $2,000 – $10,000 | 7 years | Revoked for at least one year |
| Driving While Ability Impaired by Alcohol (DWAI) | $300 – $500 | 15 days | Suspended for 90 days |
| Second DWAI violation in 5 years | $500 – $750 | 30 days | Revoked for at least six months |
| Third or subsequent DWAI within 10 years (Misdemeanor) | $750 – $1,500 | 180 days | Revoked for at least six months |
| Zero Tolerance Law | $125 civil penalty and $100 fee to terminate suspension | None | Suspended for six months |
| Second Zero Tolerance Law | $125 civil penalty and $100 re-application fee | None | Revoked for one year or until age 21 |
| Chemical Test Refusal | $500 civil penalty ($550 for commercial drivers) | None | Revoked for at least one year, 18 months for commercial drivers. |
| Chemical Test Refusal within five years of a previous DWI-related charge/Chemical Test Refusal | $750 civil penalty | None | Revoked for at least 18 months, one-year or until age 21 for drivers under age 21, permanent CDL revocation for commercial drivers. |
| Chemical Test Refusal – Zero Tolerance Law |
$300 civil penalty and $100 re-application fee | None | Revoked for at least one year. |
| Chemical Test Refusal – Second or subsequent Zero Tolerance Law |
$750 civil penalty and $100 re-application fee | None | Revoked for at least one year. |
| Driving Under the Influence (Out-of-State) | N/A | N/A | Revoked for at least 90 days. If less than 21 years of age, revoked at least one year. |
| Driving Under the Influence (Out-of State) with any previous alcohol-drug violation | N/A | N/A | Revoked for at least 90 days (longer term with certain prior offenses). If less than 21 years of age, revoked at least one year or until age 21 (longest term). |
Additional penalties
- greater penalties can also apply for multiple alcohol or drug violations within a 25-year period
- surcharges are added to alcohol-related misdemeanors ($260) and felonies (generally $400, but varies slightly depending on the court of conviction)
- three or more alcohol or drug-related convictions or refusals within 10 years can result in permanent revocation, with a waiver request permitted after at least 5 years
- a driver with an Aggravated DWI violation conviction within the prior 10 years will receive a minimum 18-month revocation if convicted of DWI, DWAI/Drugs, or DWAI/Combination. Also, a driver with a prior DWI, Aggravated DWI, DWAI/Drugs, or DWAI/Combination with the prior 10 years will receive a minimum 18-month revocation
- a driver convicted of an Aggravated DWI, DWI, DWAI/Drug, DWAI/combination, vehicular assault, and aggravated vehicular assault, or vehicular manslaughter and vehicular homicide three or more times in the preceding 15 year period is guilty of a Class D felony.
Ignition Interlock Rules: Ignition Interlock Rules apply to all Misdemeanor DWI and Felony DWI Convictions in New York State for any conviction under the NYS DWI statute.
Source: New York State Department of Motor Vehicles
http://www.dmv.ny.gov/